Cary Sherman, CEO of the RIAA, has read every comment on his recent New York …

Cary Sherman, CEO of the Recording Industry Association of America (RIAA), must have a mild masochistic streak. On February 8, he penned a badly-received New York Times op-ed in which he invited Stop Online Piracy Act (SOPA) opponents to "respectful, fact-based conversations"—after accusing them of "demagoguery," "misinformation," "dirty tricks," "hyperbolic mistruths," "hypocrisy," and "supporting foreign criminals selling counterfeit pharmaceuticals to Americans."

This will hardly go down as a case study in the Annals of Good PR, but give Sherman credit. He at least went back and read all 281 comments to his post, including the angry ("It is difficult for me to imagine any single person in this country with less credibility than the CEO of the RIAA"), the snarky ("All this time I thought sopapipas were delicious Mexican treats"), and the unintentionally awesome ("Cary H. Sherman, chief executive of the Recording Industry Association of America, which represents music labels, can take her entertainment and lies and blow it out her ear.") A few of the comments were even supportive!

Sherman came back last Thursday with a follow-up piece on the RIAA blog in which he addressed his commenters and critics. Kudos for doing it—and the tone and approach on display here are far more likely to spark a useful discussion. Each of Sherman's five points has merit, and the piece is well worth a skim.

Personally, I have no objection to the main points in the new piece. Yes, piracy causes some level of harm to people who make a living selling recorded music, and they should have tools to address unauthorized use if they so choose. Yes, the music industry has given up most DRM and should be commended for doing so. Yes, the industry saw the light about five years back and stopped fighting digital; terrific services like iTunes, Spotify, and Rdio are all testaments to how far we've come. Yes, we should all traffic in facts. And yes, foreign sites that rip off your content wholesale are obnoxious—believe me, we know all about it.

Look familiar? Yes, Chinese-based Technology Change Our Life is ripping us off

But reading the response is to realize what different worlds even content creators can inhabit. As a book author, journalist, and editor, I have a huge stake in getting paid for my work; it provides the money needed to fatten my three-month old son into the cheerfully pudgy wriggler he has become. I care deeply and personally about artists and authors being able, if they're good at what they do and can find an audience, to make a living from it. In many cases, making that living may involve copyright's protections.

Yet Sherman's piece seems simply unable to comprehend the serious criticisms against SOPA. Sure, some were misguided, based only on outdated facts or perhaps overheated rhetoric about future doomsday scenarios. Fair enough. But Mr. Sherman himself oversees a lobby shop dedicated to the task of pitching Congress on its own version of reality. Consider this complaint:

But realistically, did all of the seven million+ people who reportedly signed the Google petition [investigate the facts for themselves]? I suspect that in this case, many simply placed their faith in others.

And I suspect over the last century, Sherman's trade group has bent the ear of thousands of legislators and staffers, many not experts in either music or copyrights, who placed their faith in what they were told. If this is going to become some kind of debate over epistemology in an age of information overload, let's hear from the philosophers—not the lobbyists.

Takedown!

Still, this is mere quibbling; more interesting is what the post doesn't even address.

The Internet is awash in worldwide fear that this powerful communications platform will soon allow voices to be too easily squelched. Here in the US, the government has mistakenly seized a hip-hop music blog, apparently on the industry's say-so. In craven fashion, Immigration and Customs Enforcement simply handed the domain back a year later without explanation or apology (the dajaz1.com case).

Other mistakes have been made, too. Thousands of domains were unintentionally taken down—and visitors to those sites were redirected to a banner saying the site had trafficked in child porn (the mooo.com case). The Secret Service just last week worked with GoDaddy to take down a sizable, legitimate Internet startup without warning, explanation, or apparently even a court order (the JotForm case).

This bothers people. Argue about the word being used if you like—was this "censorship"?—but don't deny the current problems with process in this area have enraged people because of the fundamental threat they pose to any company not already large and powerful. Even when a court order is obtained, a one-sided ex parte hearing before a magistrate judge doesn't seem fair to many, especially given how murky copyright law can be. People are demanding what they view as fair process if such tough action is to be taken.

It's hard to overstate how central this concern is to the debate—perhaps some of the issue is generational?—yet it's simply not being addressed. The flat assertions that greatly increased powers either to 1) block sites (the original proposal) or 2) cut off revenue, advertising, and search engine placement with a mere letter don't amount to "censorship" miss the point. Businesses and individuals have already been harmed with the government dipping a tiny toe in these waters; how much more collateral damage will result when the powers ramp up dramatically?

And yet nothing on this key issue.

If only copyright were far, far stronger...

A second major thread in online discussions of these issues is the sheer length and power of copyright law. Most people I have spoken with on these matters aren't for total abolition of the ideas behind copyright, but the current state of affairs has appalled them. It's not just the ridiculous length of copyright terms; it's the fact rightsholders in the US and Europe have sought extensions on already-existing material. It's the fact copyright damages are the $150,000 per infringement bludgeon used by outfits like Righthaven, the current crop of P2P pay-up-or-we'll-sue porn lawyers, and the RIAA itself. It's the fact that a complex piece of international machinery has been set in motion with the sole goal of ratcheting up such laws around the world, always seeking more protection and tougher penalties without exporting the robust exceptions so important to legitimate copyright regimes.

Sherman understands this complaint exists, but he doesn't engage with its substance. Instead we get this:

Of course, there are some who insist on arguing that existing copyright law has become overbearing. But how can the laws be overbearing when they are utterly incapable of responding to offshore pirate sites that even SOPA/PROTECT IP opponents acknowledge are a problem? In truth, copyright nowadays offers little real protection, particularly when we have no tools at hand to deal with those who operate beyond the reach of our law. This was exactly what the legislation was trying to address.

This is absurd. Sherman seriously doesn't believe that copyright is even capable of being overbearing? His organization went after two young adults, one in Minnesota (three times!) and one in Massachusetts, securing court judgments against them measuring in the hundreds of thousands of dollars. The judgments were so extreme that neither of the two federal judges overseeing the cases have allowed them to stand. Thankfully, the RIAA has made clear it was willing to settle for far, far less in each case, but the result they got was the one the law produced. Citizens should not need to depend on the mercy of trade groups and corporations to avoid life-altering judgments over a few CDs worth of music.

Copyrights still provide enough protection to cause all sorts of problems; it's why the US and European music industries have both argued repeatedly for longer terms of protection and against various "reversion of rights to artists" provisions. If copyright wasn't doing anything, who would care? Copyright matters a lot to businesses, documentary producers, retailers, artists, etc.

What Sherman seems to be getting at is the more limited point that copyright is of little functional value in protecting music from unauthorized consumer use. This is true enough—but it's quite literally an insolvable problem. As even RIAA officials have told me many times, their goal is not the eradication of piracy but its reduction. The Internet and computers in general are basically digital copy machines; you aren't going to halt piracy without destroying much of the Internet along the way. The best solutions involve giving people, globally, easy access to the media they want at fair prices.

A place remains, however, for reasonable measures to enforce copyrights for those companies and individuals who choose to take advantage of them. But we have such measures already. In the view of many, myself included, we passed "reasonable" decades ago and haven't looked back since. My colleague Tim Lee recently reminded us of just how many copyright laws we've seen in the last two decades, and just how many powers these laws have bestowed on rightsholders and on the government.

Each new grant of power moves only in one direction: stronger enforcement, longer terms, broader reach. As Tim put it, this history reflects "a disproportionate focus on the interests of a handful of large companies. It's hard to think of a single example during this twenty-year period of copyright restrictions being repealed, relaxed, or any in any meaningful way liberalized."

Yet Sherman argues he has "no tools at hand to deal with those who operate beyond the reach of our law." The technical term for this is "poppycock." The arm of American law is long indeed. Consider just a few of the ways that private and state power have been used to place pressure on Internet "bad guys" in other jurisdictions:

The RIAA contributes to the "Special 301" process, under which the US Trade Representative pressures governments around the world to get tougher on IP issues

The RIAA helped push ACTA, the Anti-Counterfeiting Trade Agreement, which the US negotiated outside an increasingly fed-up WTO and WIPO, and which is meant to pressure other countries on enforcement (fortunately, the worst Internet-related provisions were pulled)

Living in an "unfriendly" jurisdiction isn't enough; if your servers exist elsewhere, they can be seized as Megaupload's were. (And if you think sites like Megaupload can offer great service to US residents with a few servers stashed in some Uzbek datacenter, think again.)

Taken together, this isn't a foolproof net. It can't be. But "no tools at hand"? This is a toolbox most industries can only dream of possessing.

"Rogue sites" remain, but the SOPA debate suggests the public has at last reached its limit. Direct attempts to give rightsholders huge new powers of enforcement on the Internet just aren't going to wash. Enforcement eventually hits a point where the cure looks less appealing than the disease.

The path ahead

The rancor over SOPA showed how important copyright's battles have become even to rank-and-file Internet users. Perhaps there's still a grand bargain that can be reached. If groups like the RIAA actually believe copyright offers "little real protection," why don't they support something like a reduction in term lengths? Or limiting the DMCA's DRM provisions to allow for legal uses—like DVD rips to a laptop to watch while traveling—instead of demanding we film movie clips off our TV screens? Or backing orphan works legislation? Or curtailing statutory damages for non-profit-seeking individuals?

At a stroke, such measures would dissipate some of the anti-rightsholder sentiment online by showing that copyright groups actually care about the real problems with the current IP regime and are willing to address those in return for help with their own real problems. "Follow the money" legislation might give rightsholders one more tool to use against foreign sites, for instance (even SOPA's top legislative opponents have professed their willingness to figure out how such a scheme could be made to work fairly).

Sadly, the reality is that the battle will probably shift out of public view, to places like the State Department and USTR and the Copyright Royalty Board and the FCC, etc, etc. Ultimately, legislative solutions may be broken up and shoved into other bills rather than providing a huge sitting target like SOPA. This is likely—but it's unhealthy. The public cares too much about such issues now; much better for all to have the sort of respectful, constructive, and open conversation Sherman calls for instead than to nurture a sense that those with money and access are working out of sight to advance their agenda by any means necessary, and regardless of the public's concerns.

The same piece calling for a "rational" approach shows how unlikely it is to happen. When the "Internet side" looks at online copyright and sees two decades of overreach, they will demand that any path forward bend back towards moderation. But when the rightsholder side looks at the same issue and can't even fathom the possibility of overreach, the gap between the two visions may be too great for respectful discourse to overcome. At some point, you understand the other side perfectly and simply disagree.

Maybe the best we can hope for in the near future is a public conversation leading not to legislation but to a modest amount of empathetic understanding. Rightsholders might spend time contemplating what it feels like to watch copyright used as a bludgeon against young people and against legitimate websites; the "fix copyright" crowd can ponder what it feels like to see every song you've ever financed available for instant unauthorized download, even after your industry has—kicking and screaming, to be sure—finally taken real steps to embrace the future.

But what next? Understanding and rationality can only take us so far; at some point you need to act. Without any sense that copyright and its enforcement have already burst the boundaries of good policy, rightsholders will probably find themselves furious with the unwashed Internet masses once it becomes clear that rational discussion hasn't produced any support for SOPA 2.0. One hopes that, eventually, they'll understand the reasons why.

213 Reader Comments

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.As long as copyright adheres to the spirit of "To promote the Progress of Science and useful Arts", there's no problem.When copyright is nothing more than "To promote the progress of greed and narcissism", well that's harming society not contributing to it.Why should society protect what does not serve it but harms it, that consumes resources that people need and does not create them, that corrupts democracy and does not support it, that blatantly promotes consumption to grossly truly offensive excess when there already is not enough to go around and, shows no limit upon it's greed even when that greed threatens the two most important tenets of democracy and justice, free speech and innocent until proven guilty.

From the RIAA blog:"Sure, piracy isn’t going to be the only reason for the industry’s decline in sales, but it certainly is the most obvious and significant explanation"--And here was me thinking that the most obvious and significant explanation was increased competition from other media exploding over the past few years (Video, Gaming, subscription television, internet, etc) coupled with particularly in the past few years decreased availalbe spending money.

The RIAA and their fellow terrorists at the MPAA are completely out of touch with reality. A couple of examples:

- Copyright term extensions. Copyright is supposed to promote creation of original contents. How can you justify extensions years after the contents were created? Authors had no legitimate expectations of increased revenues. But then this isn't about authors, is it?

- Regional markets. Digital distribution doesn't know national borders. Why do I still have to wait for something to launch in my country when it's available somewhere else? Why can't I pay for Netflix, or the Zune Marketplace, or any other legal, territorially-limited service?

The screenshot of Technology Change Our Life is hilarious. I love that it happens to include the picture from your latest feature, which almost tauntingly states that "The bad artists imitate, the great artists steal."

Copyright has become the classic case of a law that only harms the law-abiding. Anything like that ought to be thrown in the garbage and rethought.

I don't see why it's so hard for guys like Sherman to understand why we don't want to double down on such laws.

It's also annoying for Sherman to whine that people don't keep up with these matters as intensely as the CEO of the RIAA. Opportunity cost, hello? People have limited time to study things, and as a result your reputation is important. So when companies like Sony INSTALL A FUCKING ROOTKIT ON THEIR CUSTOMERS' COMPUTERS, such behavior might have lasting impression on people's attitudes. And that lasting impression might not be entirely unreasonable.

Their actions have entirely alienated the youngest generations now, there is nothing but hatred for their motives even by people who rely upon copyright for 100% of their jobs. This is the major disconnect, we are in exactly the same situation as them, yet very few of us see the world from their point of view.

If there wasn't the money grab, if they had realised that digital was the future, if they had realised we don't give a flying fuck about borders, if they hadn't acted out of purely monetary motives and acted in the spirit of copyright, then they would have legions of champions supporting them.

They didn't.

We don't care about them anymore.

That they try to pervert even more sacred notions of justice, democracy and censorship only further cements their place in history.

...the "fix copyright" crowd can ponder what it feels like to see every song you've ever financed available for instant unauthorized download, even after your industry has—kicking and screaming, to be sure—finally taken real steps to embrace the future.

Cry me a river. Too little, way too freaking late.

Entire generations have grown up with illegal downloads the only ones available while growing to despise the industry for all the overreaching garbage you just mentioned. 'A pox upon all your houses' sums it up nicely. At least, that how it was for me, and I doubt I'm alone in that. It will be a long time before I spend any money that might end up financing the **AA's of the world if I can possibly avoid it, that's for sure.

Sorry, but the 'Tech Life' page threw me completely off the article. I googled it real quick but didn't find a hit. Anyone have the URL for that page? The tradeoff between giving the offending site page hits is dwarfed by my intense desire to read ARS with an 'engrish' slant.

On a side note, could ARS do a story on China's (insert random tech sector here) and do it completely in 'engrish' just to see if it is ripped off verbatim? If you could pull off making them post an 'engrish' article translated into even worse 'engrish' you would have an epic win!

Sherman is right about one thing: copyright doesn't provide enough protection for long-term profit from intellectual work.

But that wasn't the original intent anyway. Now that they've bought legislation extending copyright beyond its natural term, more and more people will ignore copyright, thus denigrating copyright itself.

Not sure why you think "Technology Change Our Life" is ripping you off. Didn't you answer that question in a recent article titled, "If Android is a "stolen product," then so was the iPhone"? It could equally be said that "If Technology Change Our Life is a "stolen product," then so was ars technica"

Just as you illustrated that parts of the iPhone can seen in prior technology, so almost every aspect or Ars can be seen elsewhere too. I can even find very similar articles discussing the same topics. Perhaps Ars has run out of ideas, and is just trying to make money off other news companies? Or are you trying to claim you own the idea of "news" or "articles with pictures"? Ars should stop trying to block competition and focus on being innovative.

First of all, Nate, great article. A well-thought-out, in-depth gentle tap to RIAA's jaw, which is infinitely preferable to their brand of hyperbole - OMGWTFUX0RZ T3H INTARW3BS IS FALLING DOWN!!!ONEONESHIFT+ONE!!

I think you raise some very good points against his argument, but at points it seems there's a confusion between foreign policy and IP/copyright policy. Nonetheless, it does serve to point out the extraordinarily situation facing the general public and rightsholders.

Also, http://www.917wy.com/ is the site for Tech Life, and it has been taken down. Blast you for getting me there, I tried to find it for 15 minutes, and was denied once I did. I was hoping I could post spam in the comments section of several of their stories, or, ironically, pirate my own comments from this website and cut-and-paste it onto theirs...

Stop piracy: eliminate copyright completely. It has never benefited the little guy. The only ones who benefit are those that can use the fear of the cost of litigation as extortion. And that only works if they have deep pockets. The only ones who want copyright are those who want to engage in price gouging and stifling innovation. It's time to end this.

Sorry, but the 'Tech Life' page threw me completely off the article. I googled it real quick but didn't find a hit. Anyone have the URL for that page? The tradeoff between giving the offending site page hits is dwarfed by my intense desire to read ARS with an 'engrish' slant.

On a side note, could ARS do a story on China's (insert random tech sector here) and do it completely in 'engrish' just to see if it is ripped off verbatim? If you could pull off making them post an 'engrish' article translated into even worse 'engrish' you would have an epic win!

That Chinese site in relation to this article just goes to show that throughout this entire process the right holders have been ignoring the 800 pound panda in the room.

In addition it just shows that there isn't anything that the Chinese won't steal or rip off. This even made it to Newsweek, just Google ABRO Industries. They were a chemical company that had their entire product line ripped off. It was so blatant that they even ripped off their advertizements. This was seen at a trade show where a company VP was shown a pirated advert that had his wife in it.

But how can the laws be overbearing when they are utterly incapable of responding to offshore pirate sites that even SOPA/PROTECT IP opponents acknowledge are a problem? In truth, copyright nowadays offers little real protection, particularly when we have no tools at hand to deal with those who operate beyond the reach of our law.

Ahh I get it, he wants his hands in every country's cookie jar, and believes the USA should be Team America, World Police.

Not sure why you think "Technology Change Our Life" is ripping you off. Didn't you answer that question in a recent article titled, "If Android is a "stolen product," then so was the iPhone"? It could equally be said that "If Technology Change Our Life is a "stolen product," then so was ars technica"

Just as you illustrated that parts of the iPhone can seen in prior technology, so almost every aspect or Ars can be seen elsewhere too. I can even find very similar articles discussing the same topics. Perhaps Ars has run out of ideas, and is just trying to make money off other news companies? Or are you trying to claim you own the idea of "news" or "articles with pictures"? Ars should stop trying to block competition and focus on being innovative.

Sorry, but the 'Tech Life' page threw me completely off the article. I googled it real quick but didn't find a hit. Anyone have the URL for that page? The tradeoff between giving the offending site page hits is dwarfed by my intense desire to read ARS with an 'engrish' slant.

On a side note, could ARS do a story on China's (insert random tech sector here) and do it completely in 'engrish' just to see if it is ripped off verbatim? If you could pull off making them post an 'engrish' article translated into even worse 'engrish' you would have an epic win!

Until such time as the "rightholders" are interested in selling things to me online, I will be against any of their bullshit laws in my country.

I can buy 2% of Amazons eBooks because the copyright morons aren't interested in selling to me. I can go to a torrent site and get it right away... when I try to do the RIGHT thing and pay them for it... "Sorry we wont sell to you, you dirty Australian"

The only way I have to access the latest episode of my favourite TV show is to pirate it... they refuse to let me access the content legally. I'd be willing to pay a fair fee...

And then you get into the games industry where they charge double and triple for digital versions just because I'm in Australia... and it's not even government tax or levies or anything like that... it's just them being dicks... Let's not even start about Ubisoft style DRM...

So... no until such time as they are willing to meet me at 10th of the way towards the middle... they can go suck a lemon.

great article; I have but one objection to how this topic is discussed. "Yes, piracy causes some level of harm to people who make a living selling recorded music, "

I know this may seem like splitting hairs, but I believe we should choose words carefully when bringing up rights and "harm" inflicted. Copyright is not a "natural right", but a privilege granted to individuals in order to further a public need("promote the progress of science and useful arts"). As such, there is no true "harm" caused by piracy; instead, there is a lack of benefit. While you can claim you were "harmed" because you "benefited less than the law says you should", I don't believe this would be a correct or natural definition of harm. I only bring this up because I feel it is important to keep a proper distinction between privileges granted by the government and true rights. When considering "harm" to a granted privilege, we may remove that "harm" by removing the privilege; this differs from a natural right, of which the right must never be disregarded; blurring the line between right and privilege blurs the line of what response is acceptable). That said, I believe copyright will be necessary and useful for quite some time. This does not mean any particular business model around copyright should be protected, however. Distribution has been taken to effectively zero cost; it is fighting nature to preserve a business model which assumes there is cost and a "manufacturer" that can be monitored/protected when there is no cost and anyone may be an instant "manufacturer". If we acknowledge this fact and simply allow piracy to flourish, business models will quickly adjust to match;

From the RIAA blog:"Sure, piracy isn’t going to be the only reason for the industry’s decline in sales, but it certainly is the most obvious and significant explanation"--And here was me thinking that the most obvious and significant explanation was increased competition from other media exploding over the past few years (Video, Gaming, subscription television, internet, etc) coupled with particularly in the past few years decreased availalbe spending money.

It's risky business to issue guarantees on other people's behalf -- but I'll take my chances:

If the rest of the ACTA/SOPA/PIPA protesters will be so kind as to add these words of yours: "piracy causes some level of harm to people who make a living selling recorded music, and they should have tools to address unauthorized use if they so choose" to their sig lines in the future, then I'll guarantee that even the most militant, extreme and unpleasant fascist pig artists and musicians -- yours truly comes to mind -- will be pleased to add similar statements about our common need for a free and uncensored internet to our signatures.

I would also be prepared to cooperate with any such protesters in finding the exact wording of said statement, just as I would be willing to support it in public and defend it in any way.

And since I would now know that said protesters' feelings about SOPA and the rest of the acronyms were not motivated by the wish to steal my work, I would listen very carefully to their concerns.

Honestly the music industry has come around and I've been getting my music from Google (or Amazon if not on Google). I'm much happier with availability and not having to deal with BS DRM. That said these laws trying to mitigate piracy from outside our boarders miss the point. They have provided these services to the US and possibly other countries, but if it's not available everywhere reasonably they have failed.

The Internet destroyed the concept of national boarders, it's to late to put the cat back in the bag. If you really want to embrace the future then quit it with the regional stipulations and pricing on your content. That goes for the gaming industry too.

The RIAA, like all the other media cartels, needs to take a hard long look at their business model. From here, all I see is some greedy exec's trying to retain a revenue stream in an irrelevant business model. I would rather spend money at iTunes and get what I want and know that the real author of the tracks in question actually gets paid for their efforts.

right now, the attack model of the media cartels looks like an inverted pyramid. if these guys want to go after the big pirates, they need to track back to the actual source of the pirating and take THEM into court. fining some college student for several hundred thousand dollars (when clearly he doesn't have it nor is he the source of the pirating does a lot more harm). I think the only reason the media cartels go after the consumer is that it is the low hanging fruit on the tree. they need to focus on the really hard targets and actually spend some real money to cut off the sources. after that, they need to change their contracts and actually pay the artists their royalties (like itunes does). they would make a lot more money and have a lot less hassle.

instead of working against the ligitimate online services, the cartels need to make friends and offer them some actual incentive (click through adswork well for this). everyone makes their cut and the customers are happy.

Also, http://www.917wy.com/ is the site for Tech Life, and it has been taken down. Blast you for getting me there, I tried to find it for 15 minutes, and was denied once I did. I was hoping I could post spam in the comments section of several of their stories, or, ironically, pirate my own comments from this website and cut-and-paste it onto theirs...

Still up from here, and unfortunately you'll have no luck spamming them - even the comments are copied!